' NASIR SAEED SHEIKH, J.---This judgment will dispose of F.A.Os. Nos. 203, 204, 205 and 373 of 2009 which involve the common questions of law and facts.
2. In all the above mentioned F.A.Os. Four separate orders dated 12-5-2009 (in F.A.Os. Nos.203, 204 and 205 of 2009) and order dated 28-9-2009 (in F.A.O. No,373 of 2009) passed by the learned Presiding Officer, District Consumer Court, Faisalabad have been assailed in appeals preferred under section 33 of the Punjab Consumer Protection (Act No,II) of 2005. In all the four appeals the appellant is Allied Bank Ltd. Faisalabad. The respondents of the appeals lodged four separate complaints against the appellant bank alleging the suffering of losses and damages from the employees of the bank in respect of their respective accounts being maintained by the appellant bank of the respondents. It is not denied by the appellant-bank that the respondents were the accounts holders of the appellant bank.
3. The complaints were tried by the learned Presiding Officer of the District Consumer Court Faisalabad and were accepted to the extent of actually suffered losses by the respondents and the appellant bank was directed by the learned Presiding Officer through the impugned orders to make good the losses actually suffered respectively by the respondents plus a sum of Rs,10,000 was also allowed to be recovered in favour of all the respondents separately. A sum of Rs,360,000 + Rs,10,000 total Rs,370,000 was awarded against the appellant bank in F.A.O.No,203 of 2009; an amount of Rs,827,979 + Rs,10,000 total Rs,837,979 was awarded in F.A.O. No,204 of 2009; in F.A.O.
No,205 of 2009 an amount of Rs,700,000 + Rs,10,000 total Rs,710,000 was awarded against the appellant bank whereas in F.A.O. No,373 of 2009 an amount of Rs,600,000 + Rs,10,000 total Rs,610,000 was directed to be recovered from the appellant bank and the respective amounts were directed to be deposited by the appellant bank within a period of thirty days by the learned Presiding Officer, District Consumer Court, Faisalabad.
4. Through the instant appeals preferred under section 33 of the Punjab Consumer Protection (Act No,II) of 2005, the learned counsel appearing on behalf of the appellants did not contest the factual aspects of the cases and only argued the cases on the basis of the legal premises by contending that the respondents were not "consumers" as defined in section 2(c) of the Punjab Consumer Protection (Act No,II) of 2005 therefore the complaints lodged by the respondents against the appellant bank before the District Consumer Court, Faisalabad were entertained without lawful authority and the impugned orders passed by the learned Presiding Officer in favour of the respondents were prayed to be declared as illegal and unsustainable in the eye of law. The central point argued by the learned counsel for the appellant bank is that the term "consumer" has been defined in section 2(c) of the Punjab Consumer Protection (Act No,II) of 2005 to mean the hiring of services for a consideration as per section 2(c)(ii). The learned counsel for the appellant has argued that no consideration was alleged or proved by the respondents therefore the entertainment of the complaints of the respondents by the learned Presiding Officer, District Consumer Court Faisalabad was without jurisdiction. The learned counsel for the appellant relied upon the judgment cited as IZHAR ALAM FAROOQI, ADVOCATE v. SHEIKH ABDUL SATTAR LASI and others (2008 SCM R 240) to argue that the point of jurisdiction can be raised at any time and at any stage and that the jurisdiction upon a court cannot be conferred with the consent of the parties.
The learned counsel for the appellant bank contended that mere being a holder of an account in the bank is not sufficient for the purpose of invoking the jurisdiction of the District Consumer Court.
5. The contentions of the learned counsel for the appellant bank have been controverted by the learned counsel for the respondents by arguing that the term "consumer" has been interpreted by the Indian and Pakistani superior courts and the services being provided by the Pakistani banks are considered as that of a facility provider. The learned counsel for the respondents relied upon the judgments reported as FEDERATION OF PAKISTAN THROUHG SECRETARY, MINISTRY OF FINANCE AND OTHERS v. HAJI MUHAMMAD SADIQ AND OTHERS (PLD 2007 SC 133), STANDARD CHARTERED BANK LTD. v. DR. B.N.RAMAN (AIR 2006 SC 2810) and LUCKNOW DEVELOPMENT AUTHORITY v. M.K. GUPTA (AIR 1994 SC 787) in support of his contentions. The learned counsel for the respondents has finally contended that the appeals preferred by the appellants be dismissed.
6. I have considered the arguments of the learned counsel for parties.
7. The Punjab Consumer Protection (Act No,II) of 2005 is a special law and the Consumer Courts have been created in its Part-VIII and sections 25 to 27 deal with the concept of creation and jurisdiction of the Consumer Courts under the Punjab Consumer Protection (Act No,II) of 2005 and these sections are reproduced:-- "Section-25: Filing of Claims. A claim for damages arising out contravention of any provisions of this Act shall be, filed before a Consumer Court set up under this Act.
' Section.26: Establishment of Consumer Courts.
(1) The Government shall, by notification, establish one or more separate Consumer Courts [for an area, comprising one or more districts] to exercise jurisdiction and powers under this Act.
(2) A Consumer Court shall consist of a District Judge [or an Additional District Judge] to be appointed by the Government in consultation with the Lahore High Court.
(3) The terms and conditions of service of [the District Judge or the Additional District Judge] appointed under subsection (2) shall be such as may be prescribed.
' Section.27: Jurisdiction of Consumer Courts.
Subject to the provisions of this Act, the Consumer Court shall have jurisdiction to entertain complaints within the local limits of whose jurisdiction-
(a) the defendant or each of the defendants, where there are more than one, at the time of filing of the claim, actually and voluntarily resides or carries on business or personally works for gains; or
(b) any of the defendants where there are more than one, at the time of the filing of the claim, actually and voluntarily resides, or carries on business, or personally works for gain: Provided that in such a case the permission is granted by the Consumer Court or the defendants who do not reside, or carry on business, or personally work for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action wholly or in part arises."
8. Section 25 of the Punjab Consumer Protection (Act No,II) of 2005 envisages the lodging of a claim before the Consumer Courts and section 25 has not restricted the filing of the claims only to the consumers as defined in section 2(c) of the Act No,II of 2005. It is a section whiob creates a general jurisdiction of the Consumer Court. Section 26 deals with the power of the government which establishes the Consumer Court and section 26 read with section 2(f) means that it is for the Government of the Punjab to establish different consumer courts for one or more districts of the Punjab and the qualifications of the Presiding Officers have also been prescribed therein. Section 27 of the Act No,II of 2005 envisages the entertainment of complaints and in that respect the term "defendants" has been used in the three clauses and this section 27 has introduced the provisions regarding the territorial jurisdictional concept of the Consumer Courts.
9. In order to understand the concept of this special law the term "consumer" as defined in section 2(c); the term "damage" as defined in section 2(d); the term "entity" as defined in section 2(e); the term "manufacturer" as defined in section 2(h); the term "manufacturing a product" as defined in section 2(i); the term "product" as defined in section 2(j) and the term "services" as defined in section 2(k) are the variety of the fields under which the claims and complaints can be lodged before the Consumer Courts.
10. For the purposes of the instant cases the first clause which is relevant to be interpreted is clause
(d) of section 2 of the Punjab Consumer Protection (Act No,II) of 2005 which deals with the concept of damage and is defined in the following words:-- "(d) "damage" means all damage caused by a product or service including damage to the product itself and economic loss arising from a deficiency in or loss of use of the product or service;"
' And the term services which is defined in clause (k) of section 2 of the Punjab Consumer Protection Act 2005 reads as follows:-- "(k) "services" includes the provision of any kind of facilities or advice or assistance such as provision of medical, legal or engineering services but does not include-
(i) the rendering of any service under a contract of personal service;
(ii) the rendering of non-professional services like astrology or palmistry; or
(iii) a service, the essence of which is to deliver judgment by a court of law of arbitrator; The term damage as defined in section 2(d) is wide enough to cover the cases of all the respondents in the instant cases.
11. The term services as defined in section 2(k) upon its close analysis points out that the term services has not been given any restricted sense for the purpose of Punjab Consumer Protection Act, 2005 and a generalized definition has been placed upon the term "services" and the adjective "includes" has been utilized by the legislator to explain the concept of services and only three categories mentioned in its sub-clauses (i), (ii) and (iii) are excluded which are reproduced above.
While interpreting the provisions of Indian Consumer Protection Act (68 of 1986) in its Paragraphs Nos.4 and 5 the Indian Supreme Court has laid down the following principles which are relevant and are reproduced from pages 792, 793 and 794 of the reported judgment (AIR 1994 SC 787):-- "4. What is the meaning of the word 'service'? Does it extend to deficiency in the building of a house or flat? Can a complaint be filed under the Act against the statutory authority or a builder or contractor for any deficiency in respect of such property. The answer to all this shall depend on understanding of the word 'service'. The term has variety of meanings. It may mean any benefit or any act resulting in promoting interest or happiness. It may be contractual, professional, public, domestic, legal, statutory etc. The concept of service thus is very wide. How it should be understood and what it means depends in the context in which it has been used in an enactment.
Clause (a) of the definition section defines it as under: "'Service' means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or loading or both (housing construction) entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service".
' It is in three parts. The main part is followed by inclusive clause and ends by exclusionary clause.
The main clause itself is very wide. It applies to any service made available to potential users. The words 'any' and 'potential' are significant. Both are of wide amplitude. The word 'any' dictionarily means 'one or same or all'. In Black's Law Dictionary it is explained thus, 'word "any" has a diversity of meaning and may be employed to indicate "all" or "every" as well as "same" or "one" and its meaning in a given statute depends upon the context and subject matter of the statute. The use of the word 'any' in the context it has been used in clause (o) indicates that it has been used in wider sense extending from one to all. The other word 'potential' is again very wide. In Oxford Dictionary it is defined as 'capable of coming into being, possibility'. In Black's Law Dictionary it is defined as 'extending in possibility but not in act'. Naturally and probably expected to come into existence at some future time, though not now existing; for example, the future product of grain or trees already planted, or the successive future instalments (installments) or payments on a contract or agreement, already made.' In other words service which is not only extended to actual users but those who are capable of using it are covered in the definition. The clause is thus very wide and extends to any or all actual or potential users. But the legislature did not stop there. It expanded the meaning of the word further in modern sense by extending it to even such facilities as are available to a consumer in connection with banking, financing etc. Each of these are wide ranging activities in day to day life. They are discharged both by statutory and private bodies. In absence of any indication, express or implied there is no reason to hold that authorities created by the statute are beyond purview of the Act. When banks advance loan or accept deposit or provide facility of locker they undoubtedly render service. A State Bank or nationalised bank renders as much service as private bank. No distinction can be drawn in private and public transport or insurance companies. Even the supply of electricity or gas which throughout the country is being made, mainly, by statutory authorities is included in it. The legislative intention is thus clear to protect a consumer against services rendered even by statutory bodies. The text, therefore, is not if a person against whom complaint is made is a statutory body but whether the nature of the duty and function performed by it is service or even facility.
5. This takes us to the larger issue if the public authorities under different enactments are amenable to jurisdiction under the Act. It was vehemently argued that the local authorities or government bodies develop land and construct houses in -discharge of their statutory function, therefore, they would not be subjected to provisions of the Act. The learned counsel urged that if the ambit of the. Act would be widened to include even such authorities it would vitally affect functioning of official bodies. The learned counsel submitted that the entire objective of the Act is to protect a consumer against malpractices in business. The argument proceeded on complete misapprehension of the purpose of Act and even its explicit language. In fact the Act requires provider of service to be more objective and caretaking. It is still more in public services. When private undertakings are taken over by the government or corporations are created to discharge what is otherwise State's function, one of the inherent objectives of such social welfare measures is to provide better, efficient and cheaper services to the people. Any attempt, therefore, to exclude services offered by statutory or official bodies to the common man would be against the provisions of the Act and spirit behind it. It is indeed unfortunate that since enforcement of the Act there is a demand and even political pressure is built up to exclude one or the other class from operation of the Act. How ironical it is that official or semi-official bodies which insist on numerous benefits, which are otherwise available in private sector, succeed in bargaining for it on threat of strike mainly because of larger income accruing due to rise in number of consumers and not due to better and efficient functioning claim exclusion when it comes to accountability from operation of the Act. The spirit of consumerism is so feeble and dormant that no association, public or private spirited, raises any finger on regular hike in prices not because it is necessary but either because it has not been done for sometime or because the operational cost has gone up irrespective of the efficiency without any regard to its impact on the common man. In our opinion, the entire argument found on being statutory bodies does not appear to have any substance. A government or semi-government body or a local authority is as much amenable to the Act as any other private body rendering similar service. Truly speaking it would be a service to the society if such bodies instead of claiming exclusion subject themselves to the Act and let their acts and omissions scrutinized as public accountability is necessary for healthy growth of society."
' In another reported judgment of the Indian Supreme Court reported as STANDARD CHARTERED BANK LTD. v. DR. B. N. RAMAN (AIR 2006 SC 2810) following principles were highlighted:-- "Banks provide or render service /facility to its customers or even non-customers. They render facilities/services such as remittances, accepting deposits, providing for lockers, facility for discounting of cheques, collection of cheques, issue of bank drafts etc. In Vimal Chandra Grover v.
Bank of India, AIR 2000 SC 2181 this Court has held that banking is business transaction between bank and customers. Such customers are customers within the meaning of section 2(1)(d)(iii) of the Act. "
The concept introduced in the Punjab Consumer Protection Act No,II of 2005 of a service provider is wide enough to include therein the services provided by a bank which encompass all kinds of facilities, advice or assistance being provided to its accounts holder.
12. The case-law cited by the learned counsel for the appellant is distinguishable as the jurisdiction in the instant cases has not been conferred by the consent of the parties. The case-law under the Financial Institutions (Recovery of Finances) Ordinance, 2001 which defines the term customer in a different context has no relevance to the definition of the consumer as well as the services being provided by the bank which have been made amenable to the jurisdiction of the Punjab Consumer Courts.
13. The term claim has not been given any definition by the Punjab Consumer Protection (Act No,II) of 2005 and in order to understand the concept of claim we have to look into the definition of the "claim" as given in the legal dictionaries which term has been defined in Black's Law Dictionary 8th edition at page-264 in the following senses:- "Claim, n.
1. The aggregate of operative facts giving rise to a right enforceable by a court. Also termed claim for relief 2. The assertion of an existing right; any right to payment or to an equitable remedy, even if contingent or provisional the spouse's claim to half the lottery winnings>.
3. A demand for money, property, or a legal remedy to which one asserts a right; esp., the part of a complaint in a civil action specifying what relief the plaintiff asks for. [Cases: Federal Civil Procedure-680; Pleading 72 C.J. S. Pleading ss110-1151"
14. The legislator has purposely given Unrestricted meaning to the term claim in the Punjab Consumer Protection (Act No,II) of 2005. Thus it can be safely laid down IE that an account holder of the bank when defrauded by the bank or its employees can justifiably lodge a claim against the bank before the Consumer Courts established under the Punjab Consumer Protection (Act No,II) of 2005 and therefore the District Consumer Court Faisalabad in the instant cases has rightly entertained the claims lodged by the respondents in the matter and accepted the same by directing the recovery of the actual losses + Rs,10,000 in each case as legal expenses recoverable by the respondents from the appellant-bank. No jurisdictional defect is found in entertainment and acceptance of the claims lodged by the respondents in the instant cases by the learned Presiding Officer of the District Consumer Court, Faisalabad against the appellant-bank. The learned counsel for the appellant has not pointed out any illegality in so far as the factual aspects of the claims lodged by the respondents against the appellant-bank are concerned. Therefore the four appeals preferred by the appellant-bank against the impugned orders are without any force and are dismissed.